Federal Tort Claims Lawsuit – Part III

By Paul Gable

A federal tort claims lawsuit, with Horry County and former Horry County Police Department Chief Johnny Morgan included as defendants, is moving forward in Florence federal district court as discovery and depositions are scheduled later this month. This is Part III of a series.

Last week, we posted the first two parts of this series. Part III concentrates on the attempts by plaintiffs’ expert Steve Cain to analyze the original videotapes shot from HCPD patrol cars of the arrest of James Spencer on August 6, 2000.

Cain had already analyzed a copy of the videotape from the police vehicle operated by HCPD officer Jay Brantley during the arrest of Spencer. The videotape from the Brantley vehicle was a key piece of evidence that backed up claims by Spencer of violation of civil rights and police brutality.

Cain’s analysis gave strong indication that the tape copy he analyzed had been heavily edited. Cain submitted a three-page report in March 2004, to plaintiffs’ counsel in which he noted various anomalies that indicated editing of the tape.

“All of the above anomalies collectively cast serious doubt concerning the authenticity of portions of the original videotape from which this tape was reportedly manufactured by the Horry County Police Department,” read one section of Cain’s report.

Cain furthermore said he “strongly recommended” obtaining the original tape for examination and the original VCR that was used to produce the original tape (in order to confirm the editing, which would prove evidence tampering on the part of HCPD.) Cain said lacking the original, any videotape recorded by the equipment in the Brantley car to compare for digital signatures against the videotape copy provided by HCPD.

After much court wrangling about the original videotapes, they were allegedly taken to Cain’s laboratory in Wisconsin by Defendants’ attorney Robert E. Lee on October 27, 2004, pursuant to Court Order 109, issued September 7, 2004, by Judge R. Bryan Harwell.

The following is a portion of Cain’s affidavit, submitted for the court record, about the Lee trip and Cain’s attempt to analyze the tapes:

“On October 27, 2004 Defendants’ Counsel Robert E. Lee personally delivered to my laboratory in Lake Geneva, Wisconsin three videotapes and one Mobil Vision System-7 camera and recorder. Counsel Lee identified the camera and recorder as the equipment used by Defendant Brantley to record the events at the scene on August 6, 2000.

“On October 27, 2004, I provided Counsel Lee with an article I authored entitled “Forensic Video.”  The article was published in The Forensic Examiner of Video Recordings – November/December- Fall 1999. The article discussed the use of the original recording equipment in the authentication process.

“On October 28, 2004, Defendants’ Counsel Lee, under the authority of Court Order 109, attended the preparation stages at my laboratory for the examination of the three videotapes. On October 28, 2009, Defendants’ Counsel Lee asked me about alternative methods to authenticate if the Brantley videotape he delivered was the original if he (Lee) had not delivered the recorder and camera used by Brantley to record the original videotape.

“I described an alternative method which involved the use of an exemplar videotape (any other videotape ever recorded by the same equipment used by Brantley on the scene on August 6, 2000} to determine the authenticity of the Brantley videotape…

“On October 28, 2004, before the actual examination of the three videotapes began and after I described the use of exemplar videotapes to authenticate the videotape as an original recorded by a specific recorder, Defendants’ Counsel Lee unexpectedly took the videotapes he had delivered to me and left the laboratory. (Lee immediately returned to South Carolina with the tapes.)

“On or about October 31, 2004, I determined that the recording equipment Mr. Lee had delivered to me was in fact not the equipment used by Defendant Brantley, as identified by Counsel Lee, but was in fact the equipment used by Defendant McClendon to record events at the scene of August 6, 2000.”

After Lee returned to South Carolina with the tapes, their importance in the case took on new levels.

On November 23, 2004, Danny Parris, Senior Litigation Consultant for the State Budget and Control Board wrote to Major Mark Keel of SLED concerning the tapes.

The letter reads in part, “While there are some technicalities at issue in the ensuing arrest of Mr. Spencer, the main thrust of the civil litigation is that Spencer’s civil rights were violated in the arrest…Most disturbingly, there is a new allegation that the tape recorded from the deputy’s cruiser has been altered by editing out some or all of the alleged wrongdoing by the officers.”

“As you are aware, the Budget and Control Board does not wish to be placed in a position of defending criminal actions or apparently paying off victims of abuse if such has occurred. The original tape of the stop is in the possession of our defense attorney, Robert E. Lee of the Aiken Bridges Firm in Florence. The tape was given directly to him by the sheriff’s department.”

“If at all possible, we are asking for SLED to take possession of the tape to use your expertise in determining if the tape has in fact been altered.”

Two non-parties to the suit, SLED and the State Budget and Control Board, all of a sudden are thrust into the case by the Parris letter. Parris asked SLED to take possession of the tapes to conduct analysis on them. But this is pure cover.  The tapes were never again allowed to get near the plaintiffs’ expert.